THOMAS DAY THACHER

(1881-1950)
Court of Appeals: 1943-1948

by Avshalom Yotam

During the first half of the 20th century, there was concentrated in New York City a group of lawyers whose public role and influence marked them as a sort of aristocracy in public affairs. These lawyers were leaders of an active "good government" movement and were themselves often called on to assume important positions in government at the local, state, and national levels. Thomas D. Thacher was a member of this aristocracy. His time as an Associate Judge of the Court of Appeals was preceded by a notable career in private practice at the distinguished law firm founded by his father and also by prodigious service in several and various important public positions.

Thomas Day Thacher was born September 10, 1881, in Tenafly, New Jersey. His middle name, Day, recorded that he was, through his father, a great-grandson of Jeremiah Day, president of Yale College from 1817 to 1846. Judge Thacher's father, Thomas Thacher, was a founding member in 1884 of the New York law firm that became Simpson Thacher & Bartlett. His mother, Sarah McCullogh Green Thacher, was the daughter of Ashbel Green of Alexander & Green, the firm with which Judge Thacher's father had previously been associated.1

Thacher obtained his preliminary education at Taft School in Watertown, Connecticut, and Phillips Andover Academy. He then followed the family tradition and attended Yale College, graduating in 1904. He also attended Yale Law School for two years and was admitted to the New York bar in 1906. Later in his career, he continued his family's dedicated service to Yale. Judge Thacher's father had been a founder and the first president of the Yale Club of New York City, worked for many years for Yale's alumni fund, which he had also helped to found, and taught corporations law at Yale Law School for some 10 years. Judge Thacher was of course also a member of the Yale Club, and was moreover a Fellow of the Yale Corporation from 1931 to 1949 and served Yale in other ways.2

Judge Thacher began his legal career at his father's law firm. He was known there at that time as "T.D." to distinguish him from his father Thomas and his uncle Alfred B., also a partner at the firm.3 Judge Thacher continued all his life to be associated with Simpson Thacher and he developed a considerable reputation in the profession. But Thacher made his name in the course of several important interruptions from private practice.

Thacher began in public service quite early on. Henry L. Stimson had recently been appointed by the Theodore Roosevelt administration to be U.S. Attorney for the Southern District of New York and was building a reputation as an active antitrust prosecutor. Stimson was also notable in this office for hiring very talented young lawyers. Felix Frankfurter, who had been first in his class for all three years at Harvard Law School, was one such lawyer in Stimson's office. Thacher was another: he was Assistant U.S. Attorney in 1907 and 1908 and was engaged as Special Assistant U.S. Attorney in the prosecution of customs fraud in 1909 and 1910. Thacher returned to private practice and was admitted to partnership at Simpson Thacher in 1914.4

In 1917 and 1918, Thacher participated in the American Red Cross Mission to Russia. The mission, composed of eminent men and physicians led by copper financier William Boyce Thompson, traveled to Russia in the summer of 1917 in an attempt to organize relief efforts. It was likely the hope of the participants that such aid might weaken the Bolshevik faction. Thacher, who was given the rank of major in the mission and was thereafter sometimes referred to as Major Thacher, was still in Russia at the time of the Bolshevik takeover in November. He later reported that the mission was able to obtain the cooperation and protection of the Bolshevik government in order to continue the delivery of food and aid in Russia and, through Russia and the Ukraine, also to Romania; the mission performed such distributions at some risk.5

Thacher was a lifelong Republican and made his opposition to Communism quite clear when addressing the subject. But when he and many of the other officers of the Red Cross Mission returned to America, they spoke in favor of resuming normal political and trade relations with the new regime in Russia and in favor of humanitarian aid. The rationale propounded by Thacher and the others was that the new Communist regime would be more likely to fail if it could not blame the West for the deprivation of its people. At a non-partisan discussion at New York's Republican Club in early 1919, he explained:

"I am convinced that if the Soviet Government under its present leadership is compelled to face the necessities of life and to meet the obligation of providing for the welfare of its own people, the experiment of Bolshevism will quickly fail, and in failing because of its inherent weakness will be dead for all the ages."6

Thacher later expanded this argument in an article published in the Annals of the American Academy of Political Science. Relief of the people's suffering in the Soviet lands and the restoration of trade were necessary steps, he believed, toward the defeat of the Bolshevik regime.7

These proposals were not uncontroversial. Others thought that the "aid and trade" approach would only serve to plant the Bolshevik regime more firmly in Russia. Some even referred to such proposals as a sort of treachery and considered the proponents traitors. Thacher was himself accused implicitly of such treachery. In mid-1919, a committee of the New York State Senate held a hearing to consider materials seized in the raid of a Soviet bureau in New York. The American mailing list of the bureau was read into the record and included Thacher, as well as William Boyce Thompson and Raymond Robbins, also of the Red Cross Mission. The committee's counsel referred to the names on the mailing list as "the cream of Reds and apologists for radical propaganda."8 In fact, some critics have continued through the generations to find a sort of treachery in the effort from within the American establishment to promote trade relations with the new Bolshevik regime and have even focused specifically on the activities of members of the Red Cross Mission.9

In 1925, after several more years of private practice, Thacher was nominated by President Calvin Coolidge to the seat on the U.S. District Court for the Southern District of New York that was vacated by Judge Learned Hand when he was elevated to the Second Circuit. As a federal judge in the 1920s, Thacher achieved a reputation for his "independence" in Prohibition enforcement cases. When Mabel Walker Willebrandt, Assistant Attorney General in charge of the federal government's prosecution of Prohibition cases, began to obtain padlock injunctions not only following trial but as temporary remedies in advance of trial, a defendant club-owner in a test case argued in 1928 that the procedure was a violation of due process protections. Judge Thacher said on the bench that the procedure used by Mrs. Willebrandt was "shocking." Judge Thacher refused the Government's request for an adjournment so that briefs could be filed and instead gave his ruling from the bench granting the defendant's request to have the padlocks removed.10 Also in 1928, Judge Thacher won praise from conservatives when he refused to grant a protective injunction to radicals who had printed and used so-called "Sandino stamps" that protested U.S. intervention in Nicaragua.11

In 1929, Judge Learned Hand recommended through channels that President Coolidge nominate Judge Thacher to be elevated to the Second Circuit, but the appointment was not made.12 Instead, in 1929 Judge Thacher became increasingly engaged in one of the significant projects of his career: investigation and reform of the bankruptcy system. There were at that time sensational disclosures in the Southern District of serious abuses and malpractice in the administration of bankruptcies. Scandals involving such abuses as embezzlement or influence-peddling led eventually to the disbarments of several lawyers, some ordered by Judge Thacher, to suicides and even to the resignation of another federal judge at the Southern District under pressure from Representative Fiorello H. LaGuardia in Congress. As the scope of the problem began to emerge, an extensive inquiry was arranged by the Southern District that would be presided over by Judge Thacher and involve local Bar associations as well as the U.S. Attorney. Under Judge Thacher's direction, Colonel William J. Donovan, counsel to the bar associations, was in charge of the extensive investigation that involved thousands of witnesses, lengthy public hearings, numerous questionnaires and field studies in six cities and also in Canada and England. Judge Thacher himself traveled to England and spent two months observing the operation of the bankruptcy system there; he was favorably impressed by the English bankruptcy law's emphasis on rehabilitation rather than liquidation and by the effectiveness of court supervision. The inquiry resulted in a report in March 1930, referred to as the Donovan Report, which included recommendations for "radical changes" in the bankruptcy law and which was submitted to the court and, in 1931, also to Congress.13

It was at this time that President Herbert Hoover nominated Judge Thacher to be U.S. Solicitor General. The appointment was a surprise to many because it was not expected that a federal judge would be a candidate for the position. The press speculated that Judge Thacher had been tempted away from the security of his judgeship by the exciting prospect of advocating the Government's cause before the Supreme Court.14 The position of Solicitor General has indeed often been referred to as the "Tenth Justice."

When Judge Thacher became Solicitor General in June 1930, the troubles of the bankruptcy system were clearly still foremost in his mind. He gave an address to the ABA on the Donovan report, which had also become the subject of a scholarly debate. Judge Thacher convinced the President of the necessity of a larger-scale, national investigation of the issue; with bankruptcies now on the rise, the fair and efficient functioning of the bankruptcy system was urgently important. The new inquiry was directed by Judge Thacher, with much of the work performed by Lloyd K. Garrison, who had been a staff member of the Donovan inquiry. Among other things, the new inquiry was interested in the plight of wage earners who might be forced to file bankruptcy in order to protect their livelihood from wage attachment or garnishment, but who often undertook staggering burdens in order to avoid the stigma of bankruptcy by borrowing large amounts from expensive licensed or unlicensed lenders, i.e., from "loan sharks."

The report that resulted from this larger inquiry was submitted to Congress by Thacher and Garrison in early 1932 along with a message from the President. Thacher and Garrison also drafted legislation, known as the Hastings-Michener Bill, that proponents and critics described as "revolutionary." Congress immediately held extensive committee hearings, but did not enact the legislation. In early 1933, President Hoover pressed for and obtained enactment of many of the reforms as emergency legislation. The reforms streamlined bankruptcy proceedings and provided for effective court supervision. They also provided for amortization payment plans for wage earners, a system that would be improved on later.15

Thacher returned to private practice in New York in 1933 and was soon elected president of the Association of the Bar of the City of New York. He appointed to City Bar committees several prominent lawyers, including Henry L. Stimson and Samuel Seabury.16 He also became deeply involved in the Fusion movement's effort to elect LaGuardia mayor of New York City in November 1933. He was among the speakers, along with LaGuardia, Seabury, Robert Moses and others, at a huge pre-election rally in Madison Square Garden, promoting a Fusion victory not simply as a one-time triumph over the Tammany Hall organization, but as a chance for fundamental changes in City government.17

Upon LaGuardia's election, the reformers pushed for the fundamental changes in the form of a new City Charter, one of the chief goals of the Fusion movement. A charter revision commission, led by former Governor Alfred E. Smith and Seabury, was created for the City by the State Legislature early in 1934, but it resulted in a split. At Mayor LaGuardia's urging, the Legislature, in an emergency vote, abolished the existing commission and authorized the Mayor to appoint a smaller commission with plenary powers to revise the City's cumbersome charter. LaGuardia appointed nine commissioners to be led by Thacher as chairman.18 This was to be Thacher's most prominent public role. His Charter Revision Commission held public hearings and worked assiduously for more than a year to design a more efficient and transparent City government regulated by a more streamlined organic law. The new Charter brought into existence the basic structure of New York City government that is familiar today. The new features included: in place of the old Board of Aldermen, a relatively small City Council in which the legislative power was concentrated; a City Planning Commission; and codification of laws relating to the City in a separate Administrative Code.19

Thacher campaigned tirelessly for the new Charter, which was attacked by various interests, especially in the Democratic Party organization. A special point of contention for the opponents was the proposed City Planning Commission, which they described as a "super-government" that would deprive the citizenry and the Boroughs of their traditional roles.20 Within days after the final draft was submitted in August 1936, a lawsuit was filed asserting that the State Legislature lacked the constitutional authority to provide for the framing of a new Charter and for its submission for approval by City voters. After Kings County Supreme Court struck the measure from the ballot, an appeal was taken to the Court of Appeals where Thacher himself argued for the Charter Revision Commission. The Court of Appeals ruled that the procedure used was permitted by constitutional and statutory "Home Rule" provisions (Mooney v. Cohen (272 NY 33 [Oct. 1936, Crane, Ch.J.], mod 272 NY 597 [Oct. 1936]).21

As election day approached, it was expected that 1936 would be a good year for the Democrats, but the reformers were optimistic and believed that submitting the issue at a general rather than special election would increase the proportion of support. Thacher himself spoke very frequently on radio and published an extensive article in the New York Times defending the new Charter. The reformers were victorious when the new Charter was adopted by a large majority. Also adopted was a companion proposal to elect City Council members by a system of proportional representation, a system that was used in several election cycles until an amendment was adopted more than ten years later.22

Thacher continued to participate in the "informal cabinet" of Fusion members and other reformers that was advising Mayor LaGuardia.23 Even as the new Charter was being celebrated, Thacher campaigned actively for the reelection of LaGuardia in 1937 as necessary to defend the reforms in the new Charter from political operators. He told the crowd at a testimonial dinner for the Charter Revision Commission:

"Even now they are planning to exploit or wreck this instrument of public government. They would as soon kill the child after it has been born as they would before election."24

Thacher was also involved in opposing a rebellion within Republican ranks against LaGuardia.25 The Mayor was reelected and the new Charter, its future now secured, went into effect at the beginning of 1938 along with the Administrative Code, which the State Legislature approved after much wrangling.26

Thacher's public role was not limited to or by his association with Mayor LaGuardia's reform government. In 1937, he was one of a special committee of the New York County Lawyers Association, headed by Seabury, that opposed President Franklin D. Roosevelt's court-packing plan.27 In 1939, he was twice appointed to direct investigations into sensational charges of judicial misconduct.28 And Thacher was also quite willing to act against the Mayor's sometimes impulsive behavior. In 1939, as a feud was brewing between the Mayor and Governor Herbert Lehman, the Mayor decided to be counted among opponents to the elevation of Associate Judge Irving Lehman, the Governor's brother, to Chief Judge.29 The Mayor had criticized the Court of Appeals as an institution out of touch with New York City's problems and its need for greater home rule. The Mayor now seized on the opposition to Judge Lehman's elevation on the grounds that two brothers should not head two branches of State government and the fear among some Republicans that the elevation would be followed by a partisan candidacy for the vacant Associate Judge seat. The Mayor floated rumors that he himself might be a candidate for election as Chief Judge. But the Mayor's advisors, Thacher prominent among them, persuaded him to discontinue his ploy, arguing especially that there was in the opposition to Lehman's elevation a tacit appeal to anti-Semitism.30

As Mayor LaGuardia's extended term progressed, some tensions were revealed between him and his Fusion supporters. In 1940, after many members of his "informal cabinet," including Thacher, had supported the Republican candidate for president, the Mayor, who supported President Roosevelt, sent them a letter, whose contents were later published, notifying them that he would not run for reelection and that the burden of maintaining reform would fall on them.31 But such tensions were overcome and when the Mayor sought a third term, Thacher headed a lawyers' committee for the campaign. In early 1943, the Mayor appointed Thacher to fill the position of the City's Corporation Counsel who had left the office to be an Army officer. It was also understood that Thacher was the Mayor's choice for the position of Deputy Mayor if the Mayor himself should be called into the armed services.32

Within several weeks of Judge Thacher's assumption of his duties as Corporation Counsel, it was made known that Governor Thomas E. Dewey was considering appointing him to fill the vacancy on the Court of Appeals created by the retirement of Judge Edward R. Finch.33 The Governor was also considering Charles Evans Hughes, Jr., son of the former Chief Justice and Thacher's colleague in New York City's good government movement. In May 1943, the Governor named Judge Thacher to the vacant seat, describing him as "the most distinguished lawyer engaged in the private practice of law in this State."34 The New York Times said of the appointment:

"It will be the crowning achievement of a life rich in honors. Yet we shall be loath here to lose him. He is one of our most useful citizens."35

Since Judge Finch had been one of two Republicans on the Court, Thacher's appointment made no change to the balance of party affiliations. Judge Thacher was later cross-endorsed by all major parties for election and was elected to a full term on the Court.

Judge Thacher retired from the Court in 1948 because of failing health and returned to his law practice. Retirement remarks appear at 298 NY vii (1940).

Thacher was married to Eunice Burrall in 1907 and had three children. His wife died in 1943 only ten days after Judge Thacher's appointment as Corporation Counsel had been announced and not long before he was appointed to the Court of Appeals.36 Judge Thacher married the former Mrs. Eleanor Morris Lloyd in 1945. He died in 1950. An In Memoriam appears at 301 NY vii (1950). Yale University keeps his papers.

Sarah (1908 1980) married George L. Storm, a business executive. They lived in Philadelphia, PA, and then New Canaan, CT, and had four children, 11 grandchildren and 21 great grandchildren. Their children are Sally S. Lockee (b. 1940), Mary S. Allen (b. 1936), Elsie S. Wilmerding (b. 1944), and Dr. George Storm (1933 2002). Sally S. Lockee (b. 1940) lives in La Grange, TN, with her husband, retired U.S. Navy Captain Garrette E. Lockee. They have three children: Mary S. Allen (b. 1936) lives in Newton Square, PA, with her husband, Dr. Samuel D. Allen, with whom she has three children; Elsie S. Wilmerding (b. 1944) lives in Chestnut Hill, MA, with her husband Patrick R. Wilmerding, with whom she has three children; and Dr. George Storm (1933 2002), who lived in New Hampshire with his wife Jane, with whom he had two children.

Mary (1910 2001) married Dr. Daniel N. Brown, a founder of the Mt. Kisco Medical Group. They lived in Bedford, NY, and had one child, Cynthia Lloyd, who married and then divorced Thomas W. Lloyd, with whom she has one daughter. Cynthia is Director of Social Science Research at the Population Council in New York City, where she now lives.

Thomas (1916 2004) married Barbara Auchincloss. They lived in Riverdale, NY, and then New Canaan, CT. Tom was a partner at Simpson, Thacher and Bartlett and then at Patterson, Belknap, Webb and Tyler. He also served as Superintendent of Insurance in Governor Nelson Rockefeller's cabinet. They had six children, Barbara, Elizabeth, Thomas, Hugh, Peter, and Andrew, and seven grandchildren. Dr. Barbara T. Plimpton (b. 1943), a psychologist, lives in Brooklyn, NY, with her husband, David L. Plimpton, with whom she has two children. Elizabeth T. Hawn, Esq. (b. 1945) lives in Wayzata, MN, with her husband, Van Zandt Hawn, with whom she has two children. Thomas D. Thacher II, Esq. (b. 1946) lives in Bedford, NY, with his wife, Frances Tower Thacher, with whom he has two children. He works in New York City as President/CEO of Thacher Associates, an investigative consulting firm; he formerly served as Inspector General of the New York City School Construction Authority, Deputy Attorney General in the Organized Crime Task Force, assistant district attorney in Manhattan, and law clerk to Hon. Hugh R. Jones, judge of the New York State Court of Appeals. Hugh A. Thacher (b. 1948) lives in San Francisco, CA, and is President of the San Francisco Wine Exchange. Peter A. Thacher (b. 1950) lives with his wife, Sarah Sherbrooke Thacher, in Saudi Arabia, where he works as an engineer with ARAMCO. Andrew Thacher (b. 1955), a business consultant, lives in Barrington, RI, with his wife, Sarah Parsons Thacher, with whom he has one child.

Economic Force and the Russian Problem, Annals of the American Academy of Political Science, at 121 (1919).

ENDNOTES

Thomas Thacher, Noted Jurist, 69, N.Y. Times, Nov. 13, 1950, at 27; Seventy-Five Years of Simpson Thacher & Bartlett 1884-1959, published by Simpson Thacher & Bartlett; Eminent Members of the Bench and Bar of New York 1943; History of the Bench and Bar of New York (various editors) 1897.

Court Picks Flaws in Charter Attack, N.Y. Times, Oct. 2, 1936, at 20; City to Vote on Charter as High Court Upholds Powers under Home Rule, N.Y. Times, Oct. 7, 1936, at 1; Mooney; see also Johnson v. City of New York (274 NY 411 [1937]).

Charter is Filed with Few Changes for Vote in Fall, N.Y. Times, Aug. 18, 1936, at 1; Democrats to Open Drive on Charter; Today on the Radio, N.Y. Times, Oct. 23, 1936, at 26; Thacher Explains the Proposed City Charter, N.Y. Times, Nov. 1, 1936, at N4; New City Charter Adopted by 344,000, N.Y. Times, Nov. 4, 1936, at 13.

Interview with George G. Gallantz, conducted by author August 31, 2005.